[Federal Register Volume 89, Number 184 (Monday, September 23, 2024)]
[Notices]
[Pages 77547-77558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-21622]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-101065; File No. SR-FINRA-2024-001]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Order Approving a Proposed Rule Change To Amend FINRA 
Rule 3240 (Borrowing From or Lending to Customers) To Strengthen the 
General Prohibition Against Borrowing and Lending Arrangements

September 17, 2024.

I. Introduction

    On January 2, 2024, the Financial Industry Regulatory Authority, 
Inc. (``FINRA'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission''), pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change (SR-FINRA-2024-001) to amend 
FINRA Rule 3240 (Borrowing From or Lending to Customers).\3\ As stated 
in the Notice, the proposed rule change would strengthen the general 
prohibition against borrowing and lending arrangements, narrow some of 
the existing exceptions to that general prohibition, amend the 
immediate family exception,\4\ and enhance the requirements for 
notifying and obtaining member firms' approval of such arrangements.\5\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Exchange Act Release No. 99351 (Jan. 16, 2024), 89 FR 
3968 (Jan. 22, 2024) (File No. SR-FINRA-2024-001) (``Notice''), 
https://www.govinfo.gov/content/pkg/FR-2024-01-22/pdf/2024-01068.pdf.
    \4\ See infra note 28 and accompanying text.
    \5\ See Notice.
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    The proposed rule change was published for public comment in the 
Federal Register on January 22, 2024.\6\ The public comment period 
closed on February 12, 2024. The Commission received comment letters 
related to this filing.\7\ On February 21, 2024, FINRA consented to an 
extension of the time period in which the Commission must approve the 
proposed rule change, disapprove the proposed rule change, or institute 
proceedings to determine whether to approve or disapprove the proposed 
rule change to April 19, 2024.\8\

[[Page 77548]]

On April 18, 2024, the Commission published an order instituting 
proceedings to determine whether to approve or disapprove the proposed 
rule change.\9\ On April 26, 2024, FINRA responded to the comment 
letters received in response to the Notice.\10\ On July 15, 2024, FINRA 
consented to an extension of the time period in which the Commission 
must approve or disapprove the proposed rule change to September 18, 
2024.\11\ This order approves the proposed rule change.
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    \6\ Id.
    \7\ The comment letters are available at https://www.sec.gov/comments/sr-finra-2024-001/srfinra2024001.htm.
    \8\ See letter from Ilana Reid, Associate General Counsel, 
FINRA, to Daniel Fisher, Branch Chief, Division of Trading and 
Markets, Commission, filed with the Commission on February 21, 2024. 
This letter is available at https://www.finra.org/sites/default/files/2024-02/SR-FINRA-2024-001-Extension1.pdf.
    \9\ See Exchange Act Release No. 99988 (Apr. 18, 2024), 89 FR 
31242 (Apr. 24, 2024) (File No. SR-FINRA-2024-001) (``Order 
Instituting Proceedings'').
    \10\ See letter from Ilana Reid, Associate General Counsel, 
Office of General Counsel, FINRA, dated April 26, 2024, https://www.sec.gov/comments/sr-finra-2024-001/srfinra2024001-463852-1226394.pdf (``FINRA Comment Response'').
    \11\ See letter from Ilana Reid, Associate General Counsel, 
Office of General Counsel, FINRA, to Dan Fisher, Division of Trading 
and Markets, Commission, dated July 15, 2024, https://www.finra.org/sites/default/files/2024-07/SR-FINRA-2024-001-Extension2.pdf.
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II. Description of the Proposed Rule Change

A. Background

    FINRA Rule 3240 generally prohibits, with exceptions, registered 
persons from borrowing money from, or lending money to, their 
customers. The rule has five tailored exceptions,\12\ available only 
when the registered person's member firm has written procedures 
allowing the borrowing and lending of money between such registered 
persons and customers of the member firm,\13\ the borrowing or lending 
arrangements meet the conditions applicable to the relevant exception 
\14\ and, when required, the registered person notifies the member firm 
prior to entering into a borrowing or lending arrangement and obtains 
the member firm's pre-approval in writing.\15\
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    \12\ See Rule 3240(a)(2)(A) (the ``immediate family 
exception''); Rule 3240(a)(2)(B) (the ``financial institution 
exception''); Rule 3240(a)(2)(C) (the ``registered person 
exception''); Rule 3240(a)(2)(D) (the ``personal relationship 
exception''); Rule 3240(a)(2)(E) (the ``business relationship 
exception'').
    \13\ See Rule 3240(a)(1).
    \14\ See Rule 3240(a)(2).
    \15\ See Rules 3240(a)(3) and 3240(b).
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B. Proposed Rule Change

1. The General Prohibition on Borrowing From or Lending to Customers
    The proposed rule change would amend the title of FINRA Rule 3240 
from ``Borrowing From or Lending to Customers'' to ``Prohibition on 
Borrowing From or Lending to Customers,'' and change the title of Rule 
3240(a) from ``Permissible Lending Arrangements; Conditions'' to 
``General Prohibition; Permissible Borrowing or Lending Arrangements; 
Conditions.'' \16\ FINRA stated that the proposed rule change would 
make the regulatory purpose more prominent by emphasizing that the rule 
is ``first and foremost'' a general prohibition against borrowing or 
lending arrangements between registered persons and their customers (a 
``broker-customer relationship'').\17\
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    \16\ Proposed Rule 3240 and proposed Rule 3240(a).
    \17\ See Notice at 3969.
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    The proposed rule change would also make substantive changes to 
FINRA Rule 3240 to extend the application of the rule to: (1) borrowing 
or lending arrangements that pre-exist the initiation of a broker-
customer relationship; \18\ (2) borrowing or lending arrangements 
entered into within six months after a broker-customer relationship 
ends by defining a ``customer'' to include ``any customer that has, or 
in the previous six months had, a securities account assigned to the 
registered person at any member;'' \19\ (3) indirect borrowing or 
lending arrangements with related parties of the registered person or 
customer; \20\ and (4) owner-financing arrangements.\21\ The Commission 
describes each aspect of the proposed rule changes in turn.
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    \18\ Proposed Rule 3240(a).
    \19\ Proposed Rule 3240.02.
    \20\ Proposed Rule 3240.05.
    \21\ Proposed Rule 3240.03.
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a. Pre-Existing Borrowing and Lending Arrangements
    Currently, Rule 3240(a) states ``[n]o person associated with a 
member in any registered capacity may borrow money from or lend money 
to any customer of such person. . . .'' The proposed rule change would 
amend Rule 3240(a) to extend the rule's general requirements concerning 
borrowing and lending arrangements--including the general prohibition--
to borrowing and lending arrangements that pre-exist a new broker-
customer relationship.\22\ Specifically, the proposed rule change would 
amend Rule 3240(a) to prohibit registered persons from initiating a 
broker-customer relationship with a person with whom the registered 
person has an existing borrowing or lending arrangement unless the 
conditions of the proposed rule are met.\23\
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    \22\ See Notice at 3969.
    \23\ Proposed Rule 3240(a).
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b. Expansion of the Definition of Customer
    The proposed rule change would similarly extend the application of 
the rule to borrowing or lending arrangements entered into within six 
months after a broker-customer relationship ends.\24\ Specifically, the 
proposed rule change would add new FINRA Rule 3240.02 (Customer) to 
define ``customer,'' for purposes of Rule 3240, as including ``any 
customer that has, or in the previous six months had, a securities 
account assigned to the registered person at any member.'' \25\
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    \24\ See Notice at 3969.
    \25\ Proposed Rule 3240.02.
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c. Borrowing and Lending Arrangements With Related Parties of the 
Registered Person or Customer
    The proposed rule change would add new FINRA Rule 3240.05 
(Arrangements with Persons Related to Either the Registered Person or 
the Customer) to extend Rule 3240 to indirect borrowing or lending 
arrangements involving related parties of the customer or registered 
person. Specifically, the proposed rule change would provide that a 
registered person instructing or asking a customer to enter into a 
borrowing or lending arrangement with a person related to the 
registered person (e.g., the registered person's immediate family 
member or outside business) or to have a person related to the customer 
(e.g., the customer's immediate family member or business) enter into a 
borrowing or lending arrangement with the registered person would 
present similar conflict of interest concerns as borrowing or lending 
arrangements directly between the registered person and the 
customer.\26\ Accordingly, the proposed rule change would expressly 
state that such arrangements would not be consistent with Rule 3240 
unless the conditions set forth in Rule 3240 are satisfied.\27\ FINRA 
stated that the proposed rule change would address the potential for 
customer abuse that arises in these more indirect borrowing and lending 
arrangements.\28\
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    \26\ Proposed Rule 3240.05.
    \27\ Id.
    \28\ Notice at 3969.
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d. Owner-Financing Arrangements
    The proposed rule change would add Rule 3240.03 (Owner-Financing 
Arrangements) to expressly state that, for purposes of Rule 3240, 
borrowing or lending arrangements include owner-financing 
arrangements.\29\ For example, Rule 3240 would apply to situations

[[Page 77549]]

where a registered person purchases real estate from their customer, 
the customer agrees to finance the purchase, and the registered person 
provides a promissory note for the entire purchase price or arranges to 
pay in installments.\30\ Accordingly, such owner-financing arrangements 
would not be consistent with Rule 3240 unless the conditions set forth 
in Rule 3240 are satisfied.
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    \29\ Proposed Rule 3240.03.
    \30\ See Notice at 3969.
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2. The ``Immediate Family'' Definition
    Currently, Rule 3240 has an exception from the general prohibition 
for borrowing or lending arrangements with a customer who is a member 
of the registered person's immediate family.\31\ Rule 3240(c) defines 
``immediate family'' to mean ``parents, grandparents, mother-in-law or 
father-in-law, husband or wife, brother or sister, brother-in-law or 
sister-in-law, son-in-law or daughter-in-law, children, grandchildren, 
cousin, aunt or uncle, or niece or nephew, and any other person whom 
the registered person supports, directly or indirectly, to a material 
extent.'' \32\
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    \31\ See Rule 3240(a)(2)(A).
    \32\ Rule 3240(c).
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    FINRA stated that, in order to ``modernize'' the ``immediate 
family'' definition,\33\ the proposed rule change would amend the 
definition to make it consistent with the definition in FINRA Rule 
3241,\34\ which addresses similar potential conflicts of interest to 
Rule 3240.\35\ Specifically, the proposed rule change would amend Rule 
3240(c) to replace ``husband or wife'' with ``spouse or domestic 
partner'' and include ``step and adoptive relationships.'' \36\ In 
addition, the proposed rule change would amend the ``any other person'' 
clause to limit it to ``any other person who resides in the same 
household as the registered person'' and who the registered person 
``financially supports, directly or indirectly, to a material extent.'' 
\37\
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    \33\ See Notice at 3970; see also FINRA Rule 3241.
    \34\ See Notice at 3970.
    \35\ See Notice at 3977. FINRA Rule 3241 governs registered 
persons who are named a customer's beneficiary or hold a position of 
trust for a customer. FINRA Rule 3241 and FINRA Rule 3240 are both 
designed to prevent harm to customers due to registered persons 
being in a position of power and responsibility in their lives. See 
Notice at 3977 n.56.
    \36\ Proposed Rule 3240(c).
    \37\ Id.
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3. The Close Personal Relationship and Business Relationship Exceptions
    Currently, Rule 3240 has an exception from the general prohibition 
for borrowing or lending arrangements based on a ``personal 
relationship with the customer, such that the loan would not have been 
solicited, offered, or given had the customer and the registered person 
not maintained a relationship outside of the broker-customer 
relationship'' (the ``personal relationship exception'').\38\ 
Similarly, the rule's general prohibition currently does not apply to 
borrowing or lending arrangements based on a ``business relationship 
outside of the broker-customer relationship'' (the ``business 
relationship exception'').\39\
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    \38\ Rule 3240(a)(2)(D).
    \39\ Rule 3240(a)(2)(E).
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    The proposed rule change would narrow the personal relationship 
exception to apply only to personal relationships that are ``bona 
fide'' and ``close,'' and maintained outside of, and formed prior to, 
the broker-customer relationship.\40\ The proposed rule change would 
also narrow the business relationship exception to borrowing and 
lending arrangements that are based on a ``bona fide business 
relationship'' maintained outside of the broker-customer 
relationship.\41\
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    \40\ Proposed Rule 3240(a)(2)(D).
    \41\ Proposed Rule 3240(a)(2)(E).
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    In addition to narrowing the personal relationship and business 
relationship exceptions, the proposed rule change would add new Rule 
3240.04 (Close Personal Relationships; Business Relationships), which 
would provide a list of non-exhaustive factors \42\ to help firms 
evaluate whether a borrowing or lending arrangement is based on a bona 
fide close personal relationship or a bona fide business relationship. 
The non-exhaustive factors in proposed Rule 3240.04 are: ``when the 
relationship began, its duration and nature, and any facts suggesting 
that the relationship is not bona fide or was formed with the purpose 
of circumventing the purpose of Rule 3240.'' \43\ Proposed Rule 3240.04 
would also provide examples of ``close personal relationships,'' 
including, ``a childhood or long-term friend or a godparent, and other 
similarly close personal relationships.'' \44\ Additionally, proposed 
Rule 3240.04 would provide an example of a ``business relationship'' to 
include ``a loan from a registered person to a small outside business 
that the registered person co-owned for years for the sole purpose of 
providing the business with additional operating capital.'' \45\
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    \42\ See infra Section II.B.4.e.
    \43\ Proposed Rule 3240.04.
    \44\ Id.
    \45\ Id.
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    FINRA stated that the proposed rule change would ``help establish 
the scope of the close personal relationship and business relationship 
exceptions, focus on the most relevant factors when evaluating whether 
a close personal relationship or business relationship exists, and 
ensure that members consider meaningfully the potential issues involved 
in the proposed arrangement.'' \46\
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    \46\ See Notice at 3970.
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4. Notification and Approval Requirements
    Currently, Rule 3240(b) requires notification and approval for 
certain of the excepted borrowing or lending arrangements.\47\ 
Generally, the exceptions for borrowing or lending arrangements 
involving personal relationships, business relationships, and 
registered persons require member firm notification and approval. In 
contrast, the exceptions for borrowing or lending arrangements with 
immediate family members and financial institutions do not require 
member firm notification and approval. The proposed rule change would 
make the following changes to the notification and approval 
requirements.
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    \47\ Id.
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a. Approval Requirements for the Close Personal Relationship, Business 
Relationship, and Registered Persons Exceptions
    Current Rule 3240(b)(1)(A) provides that a registered person shall 
notify the member firm of borrowing or lending arrangements made within 
the personal relationship exception,\48\ business relationship 
exception,\49\ or the registered persons exception \50\ prior to 
entering into such arrangements, and that the member firm shall pre-
approve in writing such arrangements.\51\ The proposed rule change 
would amend Rule 3240(b)(1) to make clear that, while registered 
persons cannot proceed with such arrangements without their member 
firm's prior approval, the member firm is not required to approve the 
arrangement.\52\ Specifically, the proposed rule change would delete 
the ``shall pre-approve'' language and instead require the registered 
person to provide notice ``prior to entering into such arrangements'' 
or ``prior to the modification of such arrangements'' and ``obtain the 
member's approval.'' \53\
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    \48\ Rule 3240(a)(2)(D).
    \49\ Rule 3240(a)(2)(E).
    \50\ Rule 3240(a)(2)(C).
    \51\ Rule 3240(b)(1)(A).
    \52\ See Notice at 3970.
    \53\ See proposed Rule 3240(b)(1)(A).
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    Further, the proposed rule change would amend the notification and 
approval requirements in Rule 3240(b)(1) to cover borrowing or lending 
arrangements that pre-exist the broker-

[[Page 77550]]

customer relationship. Specifically, proposed Rule 3240(b)(1)(B) would 
require registered persons, prior to the initiation of a broker-
customer relationship at the member firm with a person with whom the 
registered person has an existing borrowing or lending arrangement, to 
notify the member firm in writing of any existing borrowing or lending 
arrangements within the close personal relationship, business 
relationship, and registered persons exceptions and obtain the member 
firm's approval in writing of the broker-customer relationship.\54\
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    \54\ See proposed Rule 3240(b)(1)(B).
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b. Notification and Approval Requirements for the Immediate Family 
Member Exception
    Current Rule 3240(b)(2) provides, in pertinent part, that a member 
firm's written procedures may indicate that registered persons are not 
required to notify the member firm or receive member firm approval of 
borrowing or lending arrangements within the immediate family 
exception.\55\ The proposed rule change would amend Rule 3240(b)(2) to 
apply the same approach to borrowing or lending arrangements within the 
immediate family exception that pre-exist the broker-customer 
relationship.\56\ Specifically, the proposed rule change would amend 
Rule 3240(b)(2) to provide that the member firm's procedures may 
indicate that registered persons are not required to notify the member 
firm or receive member firm approval of such arrangements either prior 
to or subsequent to initiating a broker-customer relationship.\57\ 
FINRA stated, however, that Rule 3240(b)(2) implies that member firms 
may choose to require such notice and approval of those 
arrangements.\58\
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    \55\ Rule 3240(b)(2).
    \56\ See Notice at 3971.
    \57\ See proposed Rule 3240(b)(2).
    \58\ See Notice at 3971 n.21.
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c. Notification and Approval Requirements for the Financial Institution 
Exception
    Current Rule 3240(b)(3) provides, in pertinent part, that a member 
firm's written procedures may indicate that registered persons are not 
required to notify the member firm or receive the member firm's 
approval of borrowing or lending arrangements within the financial 
institution exception,\59\ provided that ``the loan has been made on 
commercial terms that the customer generally makes available to members 
of the general public similarly situated as to need, purpose and 
creditworthiness.'' \60\ The proposed rule change would amend Rule 
3240(b)(3) to also cover borrowing or lending arrangements within the 
financial institution exception that pre-exist the broker-customer 
relationship.\61\ Specifically, the proposed rule change would amend 
Rule 3240(b)(3) to provide that the member firm's written procedures 
may also indicate that registered persons are not required to notify 
the member firm or receive the member firm's approval of borrowing or 
lending arrangements within the financial institution exception entered 
into either prior to or subsequent to initiating a broker-customer 
relationship, provided that the loan has been made on commercial terms 
that the customer generally makes available to members of the general 
public similarly situated as to need, purpose and creditworthiness.\62\ 
FINRA stated, however, that Rule 3240(b)(3) implies that member firms 
may choose to require such notice and approval of those 
arrangements.\63\
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    \59\ The ``financial institution exception'' states that no 
person associated with a member firm in any registered capacity may 
borrow money from or lend money to any customer of such person, 
unless the customer (i) is a financial institution regularly engaged 
in the business of providing credit, financing, or loans, or other 
entity or person that regularly arranges or extends credit in the 
ordinary course of business and (ii) is acting in the course of such 
business. See Rule 3240(a)(2)(B).
    \60\ See Rule 3240(b)(3).
    \61\ See Notice at 3971.
    \62\ See proposed Rule 3240(b)(3).
    \63\ See Notice at 3971 n.21.
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d. Notifications in Writing and Record Retention
    Currently, Rule 3240 does not require that registered persons who 
must notify their member firms of borrowing and lending arrangements to 
do so in writing.\64\ Furthermore, the current rule does not require 
member firms to retain any notices of borrowing and lending 
arrangements that they may receive from registered persons; it only 
requires member firms to retain written approvals.\65\ The proposed 
rule change would require registered persons to notify their member 
firms in writing of those borrowing and lending arrangements under Rule 
3240 that require notification and approval (i.e., the exceptions 
involving registered persons, close personal relationships, and 
business relationships).\66\
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    \64\ See id. at 3971.
    \65\ Id.
    \66\ Id.; see proposed Rules 3240(b)(1)(A) and (b)(1)(B) and 
proposed Rule 3240.01.
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    The proposed rule change would also amend Rule 3240.01 to require 
member firms to retain the written notifications and approvals records 
for at least three years after the date that the borrowing or lending 
arrangement has terminated, or for at least three years after the 
registered person's association with the member has terminated.\67\ The 
proposed rule change would also require record retention of notices and 
approvals related to the immediate family and financial institution 
exceptions, unless the member firm's procedures indicate that 
registered persons are not required to notify the member firm and/or 
receive member firm approval.\68\
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    \67\ See proposed Rule 3240.01.
    \68\ See Notice at 3971 n.21 (stating that ``Rule 3240.01 would 
also be amended to provide that the record-retention requirements 
are for purposes of Rule 3240(b), not just Rule 3240(b)(1). As 
explained above, Rule 3240(b)(1) requires notice and approval of 
arrangements that are within the personal relationship, business 
relationship, and registered persons exceptions. While Rule 
3240(b)(2) and (3) do not expressly require notice and approval of 
arrangements within the immediate family member and financial 
institution exceptions, those subparagraphs imply that members may 
choose to require such notice and approval of those 
arrangements.'').
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e. Reasonable Assessment by Member of the Risks Created by the 
Borrowing or Lending Arrangement
    The proposed rule change also would add new Rule 3240.06 
(Obligations of Member Receiving Notice). Proposed Rule 3240.06 would 
require a member firm, upon receiving written notice under Rule 3240, 
to ``perform a reasonable assessment of the risks created by the 
borrowing or lending arrangement with a customer, modification to the 
borrowing or lending arrangement with a customer, or existing borrowing 
or lending arrangement with a person who seeks to be a customer of the 
registered person.'' \69\ It would further provide that the member firm 
make a ``reasonable determination of whether to approve the borrowing 
or lending arrangement, modification to the borrowing or lending 
arrangement, or, where there is an existing borrowing or lending 
arrangement with a person who seeks to be a customer of the registered 
person, the broker-customer relationship.'' \70\ In the Notice, FINRA 
stated that a member firm's ``reasonable assessment'' should consider 
several non-exhaustive factors, such as:
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    \69\ Proposed Rule 3240.06.
    \70\ Id.
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    (1) any potential conflicts of interest in the registered person 
being in a borrowing or lending arrangement with a customer;
    (2) the length and type of relationship between the customer and 
registered person;

[[Page 77551]]

    (3) the material terms of the borrowing or lending arrangement;
    (4) the customer's or the registered person's ability to repay the 
loan;
    (5) the customer's age;
    (6) whether the registered person has been a party to other 
borrowing or lending arrangements with customers;
    (7) whether, based on the facts and circumstances observed in the 
member's business relationship with the customer, the customer has a 
mental or physical impairment that renders the customer unable to 
protect his or her own interests;
    (8) any disciplinary history or indicia of improper activity or 
conduct with respect to the customer or the customer's account (e.g., 
excessive trading); and
    (9) any indicia of customer vulnerability or undue influence of the 
registered person over the customer.\71\
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    \71\ See Notice at 3971.
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    Moreover, the factors that a member firm considers ``should allow 
for a reasonable assessment of the associated risks so that the member 
can make a reasonable determination of whether to approve the borrowing 
or lending arrangement, modification to the borrowing or lending 
arrangement, or, where there is an existing borrowing or lending 
arrangement with a person who seeks to be a customer of the registered 
person, the broker-customer relationship.'' \72\ FINRA also stated in 
the Notice that it ``would expect a member to try to discuss the 
arrangement with the customer[,]'' as part of the member firm's 
reasonable assessment of the risks.\73\
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    \72\ See id.
    \73\ See id. at 3972.
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III. Discussion and Commission Findings

    After careful review of the proposed rule change and the comment 
letters, and FINRA's response to comments, the Commission finds that 
the proposed rule change is consistent with the requirements of the 
Exchange Act and the rules and regulations thereunder that are 
applicable to a national securities association.\74\ Specifically, as 
explained in more detail below, the Commission finds that the proposed 
rule change is consistent with Section 15A(b)(6) of the Exchange Act, 
which requires, among other things, that FINRA rules be designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, and, in general, to protect 
investors and the public interest.\75\
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    \74\ In approving this rule change, the Commission has 
considered the rule's impact on efficiency, competition, and capital 
formation. See 15 U.S.C. 78c(f).
    \75\ 15 U.S.C. 78o-3(b)(6).
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    The proposed rule change would strengthen the general prohibition 
against borrowing and lending arrangements between registered persons 
and their customers. Specifically, it would narrow the types of 
permissible borrowing and lending arrangements by covering 
relationships that pre-exist a new broker-customer relationship, as 
well as borrowing or lending arrangements entered into within six 
months after a broker-customer relationship ends. The proposed rule 
change would also extend the application of the rule to indirect 
borrowing and lending arrangements involving related parties of the 
customer or registered person and to owner-financing arrangements. In 
addition, the proposed rule change would modify the relationship 
categories in the immediate family exception. Furthermore, it would 
require borrowing and lending arrangements based on the close personal 
relationship and business relationship exceptions be ``bona fide.'' It 
also would require: registered persons to notify their member firms in 
writing and obtain member firms' approval of certain borrowing and 
lending arrangements; member firms to retain records of notices and 
approvals; and member firms to conduct a reasonable assessment of the 
risks associated with certain arrangements. Accordingly, and as 
explained in more detail below, the Commission finds that the proposed 
rule change is consistent with Section 15A(b)(6) of the Exchange Act. 
The Commission addresses the proposed rule change's specific 
provisions, and any related comments, in turn.

A. The General Prohibition on Borrowing From or Lending to Customers

    FINRA is proposing to amend the title of FINRA Rule 3240 to 
``Prohibition on Borrowing From or Lending to Customers,'' and change 
the title of Rule 3240(a) to ``General Prohibition; Permissible 
Borrowing or Lending Arrangements; Conditions.'' Commenters did not 
specifically comment on this proposed rule change. By emphasizing that 
FINRA Rule 3240 imposes a general prohibition on registered persons 
borrowing from or lending to their customers, the proposed rule change 
highlights the regulatory purpose of the rule to generally prohibit 
borrowing and lending arrangements.
    The proposed rule change would also make several substantive 
changes to the general prohibition on borrowing from or lending to 
customers, including extending the rule to cover borrowing and lending 
arrangements that pre-exist the broker-customer relationship; extending 
the rule's limitations to borrowing or lending arrangements entered 
into within six months after a broker-customer relationship ends; and, 
specifying that certain borrowing and lending arrangements are covered 
by the general prohibition. The Commission addresses those changes 
below.
1. Pre-Existing Borrowing and Lending Arrangements
    The proposed rule change would amend Rule 3240(a) to provide that 
the rule's general requirements concerning borrowing and lending 
arrangements--including the general prohibition--apply to borrowing and 
lending arrangements that pre-exist a new broker-customer relationship. 
The proposed rule change would prohibit registered persons from 
initiating a broker-customer relationship with a person with whom the 
registered person has an existing borrowing or lending arrangement 
unless the conditions of the proposed rule are met.\76\
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    \76\ See id. at 3969.
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    Two commenters supported this change.\77\ One of these commenters 
stated that conflicts of interest would exist in the relationship 
irrespective of whether or not a borrowing or lending arrangement 
existed before or after the broker-customer relationship is 
established.\78\ Thus, the commenter noted, broadening and applying the 
general prohibition to borrowing or lending arrangements that pre-exist 
the broker-customer relationship will protect investors.\79\ Another 
commenter supported covering borrowing or lending arrangements that 
pre-exist broker-customer relationship to the extent the proposed rule 
change would continue to permit any borrowing or lending 
arrangements.\80\ To the extent

[[Page 77552]]

that any borrowing or lending arrangements are permitted, this 
commenter called for strong safeguards to protect investors from 
``predatory lending or undue influence in a broker-customer 
relationship.'' \81\
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    \77\ See letter from William Jacobson, Clinical Professor of Law 
and Director, Cornell Securities Law Clinic, dated February 12, 
2024, at 2, https://www.sec.gov/comments/sr-finra-2024-001/srfinra2024001-428040-1059142.pdf (``CSLC'') (emphasizing that by 
extending the prohibition to situations where financial arrangements 
pre-date the formal establishment of a broker-customer relationship, 
``the amendment aims to prevent potential conflicts of interest or 
abuses.''); see also letter from Joseph C. Pfeiffer, President, 
Public Investor Advocate Bar Association, dated February 12, 2024, 
at 1, https://www.sec.gov/comments/sr-finra-2024-001/srfinra2024001-426619-1057382.pdf (``PIABA'').
    \78\ PIABA at 1-2.
    \79\ PIABA at 1.
    \80\ See letter from Claire McHenry, President, North American 
Securities Administrators Association, Inc., dated February 12, 
2024, at 4, https://www.sec.gov/comments/sr-finra-2024-001/srfinra2024001-428019-1058522.pdf (``NASAA'').
    \81\ See id. Specifically, two commenters who provided comments 
on specific provisions of the proposed rule change stated a 
preference for a broad prohibition on all borrowing and lending 
arrangements. See NASAA at 3-4 (identifying a complete ban with no 
exceptions as the most efficient and effective way to address ``the 
serious conflicts inherent in such a relationship and the potential 
for investor harm''); see also letter from Jenice Malecki, 
Jacqueline Candela, and Adam Schreck of Malecki Law, dated February 
12, 2024, at 1, https://www.sec.gov/comments/sr-finra-2024-001/srfinra2024001-428039-1058683.pdf (``Malecki'') (stating that 
``lending arrangements between registered representatives and their 
customers should be strictly prohibited. Transactions amongst 
registered representatives and customers inherently involve parties 
negotiating from disparate bargaining positions.''). In response, 
FINRA stated that it considered prohibiting all such arrangements 
but rejected the approach because such arrangements may be mutually 
beneficial to the contracting parties. See FINRA Comment Response at 
1-2. FINRA stated also that the proposed rule change would 
strengthen the general prohibition against such arrangements by 
extending the scope of arrangements to which the rule would apply 
and by narrowing some exceptions. See FINRA Comment Response at 4. 
In addition, FINRA stated that the proposed rule change would 
strengthen the notice and approval requirements, as discussed more 
fully below. See id. As discussed herein, FINRA Rule 3240 generally 
prohibits registered persons from borrowing money from, or lending 
money to, their customers but permits such arrangements under 
limited circumstances designed to minimize the impact of conflicts 
of interest. The proposed rule change would strengthen the general 
prohibition against borrowing and lending arrangements between 
registered persons and their customers. Accordingly, for the reasons 
discussed in detail below, we find that the proposed rule change is 
consistent with the public interest and the protection of investors.
---------------------------------------------------------------------------

    FINRA stated that the proposed rule change would strengthen the 
general prohibition against borrowing and lending arrangements by 
extending the scope of arrangements to which the rule would apply to 
pre-existing arrangements.\82\ In addition, FINRA stated that the 
proposed rule change would strengthen the notice and approval 
requirements by, among other things, requiring member firms, upon 
receiving notice under the proposed rule, to conduct a reasonable 
assessments of the risks created by a borrowing or lending arrangement 
and make a reasonable determination of whether to approve it, as 
described more fully below.\83\
---------------------------------------------------------------------------

    \82\ See FINRA Comment Response at 4.
    \83\ Id.
---------------------------------------------------------------------------

    The proposed rule change reasonably extends the general prohibition 
against borrowing and lending arrangements to cover borrowing or 
lending arrangements that pre-exist a new broker-customer relationship. 
By extending this general prohibition to such arrangements, the 
proposed rule change reasonably extends the scope of the rule while 
preserving the opportunity for parties to enter into such arrangements 
in limited circumstances and subject to procedural protections (as 
discussed below) designed to minimize the impact of the potential 
conflict. For these reasons, the proposed rule change is reasonably 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, and, in general, to 
protect investors and the public interest.
2. Expansion of the Definition of Customer
    The proposed rule change would add new FINRA Rule 3240.02 
(Customer) to define ``customer,'' for purposes of Rule 3240, to 
include any customer who has, or in the previous six months had, a 
securities account assigned to the registered person at any member 
firm. FINRA stated that the proposed rule change would extend the 
rule's limitations to borrowing or lending arrangements entered into 
within six months after a broker-customer relationship terminates.\84\
---------------------------------------------------------------------------

    \84\ See Notice at 3969.
---------------------------------------------------------------------------

    One commenter supported this proposed extension of the rule's 
limitations to borrowing or lending arrangements, but favored extending 
the covered time period to one year as a stronger anti-evasion measure 
instead of the proposed six months.\85\ The commenter stated that a 
one-year ``lookback'' time period would curtail attempts to evade this 
rule and therefore ``enhance investor protection to a greater degree 
than the proposed six month time period.'' \86\ The commenter further 
stated that FINRA Rule 4111 (Restricted Firm Obligations) uses a one-
year ``lookback'' time period.\87\
---------------------------------------------------------------------------

    \85\ PIABA at 2.
    \86\ Id.
    \87\ Id.
---------------------------------------------------------------------------

    In response, FINRA stated that it proposed to align the new Rule 
3240 time period with the six-month time period in the definition of 
``customer'' in Rule 3241, because Rule 3241 addresses similar 
potential conflicts of interest,\88\ whereas Rule 4111's one-year 
``lookback'' time period relates to the identification of firms with a 
significant history of misconduct.\89\ FINRA stated that there are 
costs associated with extending the general prohibition after the 
broker-customer relationship ends.\90\ Such costs relate to evaluating 
and making reasonable determinations on a host of arrangements about 
which the member firm was not previously notified, as well as costs 
associated with continued monitoring for prohibited borrowing and 
lending arrangements with every customer who transfers an account away 
from the member firms' registered persons.\91\ FINRA stated also that 
the six-month time period ``strikes an appropriate balance between 
achieving the regulatory objective of addressing circumvention of the 
proposed rule change and imposing requirements that are reasonable and 
appropriate, including reasonable requirements on member firms in 
tracking transfers of customers' accounts.'' \92\
---------------------------------------------------------------------------

    \88\ See FINRA Comment Response at 14. Rule 3241.01 defines 
``customer'' as ``any customer that has, or in the previous six 
months had, a securities account assigned to the registered person 
at any member.'' FINRA Rule 3241 governs registered persons who are 
named a customer's beneficiary or hold a position of trust for a 
customer. FINRA Rule 3241 and FINRA Rule 3240 are both designed to 
prevent harm to customers due to registered persons being in a 
position of power and responsibility in their lives. See Notice 3977 
n.56.
    \89\ See FINRA Comment Response at 14. FINRA Rule 4111 addresses 
risks from broker-dealers with a significant history of misconduct, 
including firms with a high concentration of individuals with a 
significant history of misconduct (``Restricted Firms''). For 
purposes of calculating concentration, the rule covers persons 
registered with the member firm for one or more days within the one 
year prior to the date of the annual calculation used for 
determining Restricted Firm status. See Regulatory Notice 21-34 
(Sep. 28, 2021), https://www.finra.org/rules-guidance/notices/21-34.
    \90\ See FINRA Comment Response at 15.
    \91\ See id.
    \92\ See id. at 14 (citing FINRA Regulatory Notice 20-38 (Oct. 
2020)).
---------------------------------------------------------------------------

    The proposed rule change reasonably extends the rule's coverage to 
borrowing and lending arrangements involving customers who in the 
previous six months had a securities account assigned to a registered 
person. As a result, the proposed rule change protects investors by 
broadening the scope of customer relationships covered by the rule's 
general prohibition and limited exceptions. Further, the six-month 
limit on how long a broker-dealer must monitor terminated customer 
accounts reasonably balances the benefits of the rule's protections 
with the burden of complying with the rule's requirements for an 
extended period after the termination of the broker-customer 
relationship. For these reasons, the proposed rule change is reasonably 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, and, in general, to 
protect investors and the public interest.

[[Page 77553]]

3. Borrowing and Lending Arrangements With Related Parties of the 
Registered Person or Customer
    The proposed rule change would extend the rule's general 
prohibition to borrowing or lending arrangements with related parties 
of the customer or registered person that involve conflicts similar to 
those presented by borrowing or lending arrangements directly between 
registered persons and their customers. Specifically, proposed new 
FINRA Rule 3240.05 would provide that a registered person instructing 
or asking a customer to enter into a borrowing or lending arrangement 
with a person related to the registered person or to have a person 
related to the customer enter into a borrowing or lending arrangement 
with the registered person would present similar conflict of interest 
concerns as borrowing or lending arrangements between the registered 
person and the customer and would be inconsistent with Rule 3240 unless 
the conditions set forth in Rule 3240(a) are satisfied. FINRA stated 
that the proposed rule change would address the potential for customer 
abuse that arises when a registered person: (1) ``induces a customer to 
enter into a borrowing or lending arrangement with a person or entity 
related to the registered person'' or (2) ``induces a customer to have 
a person or entity related to the customer enter into an arrangement 
with the registered person.'' \93\
---------------------------------------------------------------------------

    \93\ Notice at 3969.
---------------------------------------------------------------------------

    Two commenters supported the proposed rule change.\94\ One stated 
that it is a ``good idea'' because ``[t]he same or very similar 
conflict of interest is present if a registered representative's close 
family member obtains a loan from a registered representative's client 
just as if the registered representative obtained it themselves.'' \95\ 
The other commenter stated that the proposed rule change would close 
``potential loopholes'' and safeguard against abuses that may occur 
``when a registered person induces a customer to enter into financial 
arrangements with related individuals.'' \96\
---------------------------------------------------------------------------

    \94\ See CSLC; PIABA.
    \95\ PIABA at 2.
    \96\ CSLC at 2.
---------------------------------------------------------------------------

    The proposed addition of FINRA Rule 3240.05 reasonably extends the 
rule to cover indirect borrowing or lending arrangements involving 
parties related to either the registered person or the customer, and 
thus prevents a registered person from evading the restrictions of Rule 
3240. As such, the proposed rule change appropriately addresses 
conflicts of interest between registered persons and customers that may 
arise from certain borrowing or lending arrangements with related 
persons and entities. For these reasons, the proposed rule change is 
reasonably designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, and, in 
general, to protect investors and the public interest.
4. Owner-Financing Arrangements
    Proposed Rule 3240.03 would include owner-financing arrangements as 
borrowing or lending arrangements that are covered by Rule 3240.\97\ 
For example, the proposed rule change would cover situations where a 
registered person purchases real estate from their customer, the 
customer agrees to finance the purchase, and the registered person 
provides a promissory note for the entire purchase price or arranges to 
pay in installments.\98\ Commenters did not specifically comment on 
this proposed rule change.
---------------------------------------------------------------------------

    \97\ Proposed Rule 3240.03.
    \98\ See Notice at 3969 (referencing James K. Breeze, Letter of 
Acknowledgment, Waiver and Consent, Case ID 2008012846501 (June 30, 
2009); Vincenzo G. Covino, Letter of Acknowledgment, Waiver and 
Consent, Case ID 2009020793901 (Feb. 9, 2012)).
---------------------------------------------------------------------------

    By extending Rule 3240 to cover owner-financing arrangements, the 
proposed rule change protects investors by addressing financing 
arrangements that present similar conflicts of interest and a similar 
potential for abuse as other borrowing and lending arrangements covered 
by Rule 3240. Generally prohibiting such financing arrangements, unless 
the conditions of the rule are met, is a reasonable approach to address 
the potential risk of harm associated with this type of borrowing or 
lending arrangement. For these reasons, the proposed rule change is 
reasonably designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, and, in 
general, to protect investors and the public interest.

B. The ``Immediate Family'' Definition

    Rule 3240's general prohibition on borrowing or lending 
arrangements provides an exception for arrangements between a 
registered person and a customer who is a member of the registered 
person's immediate family.\99\ The proposed rule change would update 
the ``immediate family'' definition to include new relationship 
categories.\100\ Specifically, the proposed rule change would amend 
Rule 3240(c) to replace ``husband or wife'' with ``spouse or domestic 
partner'' and amend the definition to include ``step and adoptive 
relationships.'' \101\ In addition, the proposed rule change would 
amend the ``any other person'' clause to state that it only applies to 
``any other person who resides in the same household as the registered 
person'' and who the registered person ``financially supports, directly 
or indirectly, to a material extent.'' \102\ Commenters supported the 
proposed rule change.\103\
---------------------------------------------------------------------------

    \99\ See Rule 3240(a)(2)(A).
    \100\ See Notice at 3970.
    \101\ Proposed Rule 3240(c).
    \102\ Id.
    \103\ See, e.g., CSLC at 3 (stating that amending the ``any 
other person'' clause would align the definition with ``practical 
considerations'' that would reduce the potential for misuse. Also 
stating that ``[t]he modernization of this definition showcases a 
dedication to inclusivity and adaptability. It also works to 
strengthen the rule, making sure it stays relevant to contemporary 
society and prevents individuals from exploiting technicalities.''); 
see also PIABA at 2.
---------------------------------------------------------------------------

    By amending the definition of ``immediate family,'' the proposed 
rule change updates the rule to encompass a broader set of familial 
relationships, while at the same time retaining a reasonably narrow and 
clear scope, which provides more compliance certainty. In addition, 
amending the ``any other person'' clause to restrict the definition to 
those individuals who live with, and are financially supported by, the 
registered person is a reasonable approach to reducing the potential 
for the exception to be misused. For these reasons, the proposed rule 
change is reasonably designed to prevent fraudulent and manipulative 
acts and practices, to promote just and equitable principles of trade, 
and, in general, to protect investors and the public interest.

C. The Close Personal Relationship and Business Relationship Exceptions

    Rule 3240 currently includes a personal relationship exception 
\104\ and a business relationship exception \105\ to the general 
prohibition against registered persons borrowing or lending to their 
customers. The proposed rule change would narrow the personal 
relationship exception to apply only to personal relationships that are 
``bona fide'' and ``close,'' and maintained outside of, and formed 
prior to, the broker-customer relationship. The proposed rule change 
would also narrow the business relationship exception to borrowing and 
lending arrangements that are based on a ``bona fide business 
relationship'' outside of the broker-customer relationship.\106\
---------------------------------------------------------------------------

    \104\ Rule 3240(a)(2)(D).
    \105\ Rule 3240(a)(2)(E).
    \106\ Proposed Rule 3240(a)(2)(E).
---------------------------------------------------------------------------

    In addition, proposed Rule 3240.04 would provide factors for 
evaluating

[[Page 77554]]

whether a borrowing or lending arrangement is based on a bona fide, 
close personal relationship or a bona fide business relationship, 
including ``when the relationship began, its duration and nature, and 
any facts suggesting that the relationship is not bona fide or was 
formed with the purpose of circumventing the purpose of Rule 3240.'' 
\107\ Proposed Rule 3240.04 would also provide examples of ``close 
personal relationships,'' including, ``a childhood or long-term friend 
or a godparent.'' \108\ Finally, proposed Rule 3240.04 would provide as 
an example of a ``business relationship,'' ``a loan from a registered 
person to a small outside business that the registered person co-owned 
for years for the sole purpose of providing the business with 
additional operating capital.'' \109\
---------------------------------------------------------------------------

    \107\ Proposed Rule 3240.04.
    \108\ Id.
    \109\ Id.
---------------------------------------------------------------------------

    One commenter supported the proposed rule change, stating that 
replacing the current requirement with the bona fide relationship 
requirement for both the close personal relationship and business 
relationship exceptions ``eliminates subjectivity and ambiguity'' \110\ 
and ``emphasizes the genuine and sincere nature of the relationship, 
focusing on authenticity and legitimacy.'' \111\ This commenter also 
stated that the factors test introduced by proposed Rule 3240.04 offer 
``clear criteria for evaluation, emphasizing specific aspects such as 
the duration and nature of the relationship . . ., providing a 
structured framework for assessing relationship legitimacy.'' \112\
---------------------------------------------------------------------------

    \110\ CSLC at 3.
    \111\ Id.; see also PIABA at 2 (commending ``any effort to limit 
the exceptions and make very clear that this conduct is not 
allowed.'').
    \112\ CSLC at 3.
---------------------------------------------------------------------------

    Two other commenters opposed the proposed rule change.\113\ One 
stated that close personal relationships do not ``confer any additional 
protections from the kinds of conflicted, exploitative, and abusive 
practices that the rules should be designed to prevent.'' \114\ The 
other commenter stated the proposed amendments to the exceptions would 
result in the exceptions being too subjectively applied because it asks 
firms to make judgements of legitimacy and would be difficult to 
implement.\115\ Specifically, the commenter stated that the term ``bona 
fide'' is vague and ambiguous and that the lack of an explanation or 
test to discern what constitutes a relationship as legitimate would 
make it difficult to interpret the application of the exceptions.\116\ 
To address this issue, the commenter requested that FINRA provide more 
examples of relationships that would qualify for the close personal 
relationship and business relationship exceptions.\117\ In addition, 
this commenter stated that if the rule's intent is to prohibit 
arrangements when the personal relationship is formed after the 
commencement of the broker-customer relationship, it should explicitly 
say so.\118\
---------------------------------------------------------------------------

    \113\ Malecki; NASAA.
    \114\ See NASAA at 4.
    \115\ See Malecki at 5.
    \116\ See id. at 5-6.
    \117\ See id. at 5-6 (expressing the view that the existing 
examples are limited and very specific and may not be relatable to 
most broker-customer relationships).
    \118\ See id. at 5.
---------------------------------------------------------------------------

    In response, FINRA stated that it proposed to narrow the exception 
and provide factors that are relevant to assessing whether a 
relationship falls within the scope of either the close personal or 
business relationship exception precisely because it shared concerns 
about the scope of these exceptions. In particular, FINRA stated that 
limiting the personal relationship exception to relationships that are 
(1) bona fide, (2) close, and (3) maintained outside of, and formed 
prior to, the broker-customer relationship, ``would reduce the risk 
that a registered person would concoct a personal relationship with a 
customer for the purpose of borrowing from or lending to the customer, 
and . . . address concerns that this exception could be exploited.'' 
\119\ In response to the commenter's request for clarification 
regarding whether the proposed rule change would cover personal 
relationships developed after the formation of the broker-customer 
relationship, FINRA reiterated that relationships formed after the 
establishment of the broker-customer relationship would not fall within 
the proposed close personal relationship exception, which would only 
apply to bona fide, close personal relationships maintained outside of, 
and formed prior to, the broker-customer relationship.\120\ According 
to FINRA, the close personal relationship exception is designed only to 
apply where the borrowing or lending arrangement is less likely to have 
resulted from the broker-customer relationship because the close 
personal relationship existed prior to the broker-customer relationship 
and does not involve the two parties being introduced through the 
broker-customer relationship that may involve conflicts of 
interest.\121\
---------------------------------------------------------------------------

    \119\ See FINRA Comment Response at 9.
    \120\ Id.
    \121\ See id. at 9-10 (stating that the situation where an older 
or vulnerable customer loans money to a registered person who had 
befriended them after they already formed a broker-customer 
relationship, would be outside the scope of the proposed close 
personal relationship exception, and thus, would be prohibited).
---------------------------------------------------------------------------

    In response to commenter requests for more examples of close 
personal and business relationships, FINRA stated that the examples 
described in the proposed rule change ``add helpful clarity while 
giving members the flexibility to consider factors relevant to whether 
these exceptions apply.'' \122\ In declining to provide additional 
examples, FINRA stated that, ultimately, the applicability of the 
exceptions depends on the facts and circumstances.\123\ However, to the 
extent any particular scenario raises questions regarding the 
application of the rule, FINRA would consider issuing additional 
guidance on a case-by-case basis.\124\
---------------------------------------------------------------------------

    \122\ See id. at 10.
    \123\ See id.
    \124\ See id.
---------------------------------------------------------------------------

    The proposed rule change reasonably limits the personal 
relationship exception to bona fide, close relationships maintained 
outside of, and formed prior to, the broker-customer relationship and 
the business relationship exception to borrowing and lending 
arrangements that are based on a bona fide business relationship 
maintained outside of the broker-customer relationship. By narrowing 
these exceptions in this manner, the proposed rule change would help 
ensure that these exceptions to the general prohibition are limited to 
the types of relationships where the risk to investors should be 
reduced. Similarly, by providing factors for evaluating whether a 
borrowing or lending arrangement is based on a bona fide, close 
personal relationship or a bona fide business relationship, as well as 
examples of close personal relationships and business relationships, 
the proposed rule change would help parties comply with the terms of 
these exceptions. For these reasons, the proposed rule change is 
reasonably designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, and, in 
general, to protect investors and the public interest.

D. Notification and Approval Requirements

    As stated above, Rule 3240(b) requires notification and approval 
for certain borrowing or lending arrangements.

[[Page 77555]]

Generally, the exceptions for borrowing and lending arrangements 
involving personal relationships, business relationships, and 
registered persons, require member firm notice and approval. The 
exceptions for borrowing and lending arrangements with immediate family 
members and financial institutions do not require member firm 
notification and approval. The proposed rule change would amend the 
notification and approval requirements of Rule 3240. We discuss the 
proposed changes separately below.
1. Approval Requirements for the Close Personal Relationship, Business 
Relationship, and Registered Persons Exceptions
    The proposed rule change would amend Rule 3240(b)(1) to clarify 
that, although registered persons are required to obtain the member 
firm's prior approval of borrowing or lending arrangements within the 
close personal relationship, business relationship, or registered 
persons exceptions, the member firm is not required to approve such 
arrangements.\125\ Specifically, the proposed rule change would delete 
``shall pre-approve'' from the current rule and instead require the 
registered person to provide notice ``prior to entering into such 
arrangements'' or ``prior to the modification of such arrangements'' 
and to ``obtain the member's approval.'' Two commenters supported the 
proposed rule change.\126\
---------------------------------------------------------------------------

    \125\ See Notice at 3970.
    \126\ See CSLC at 4 (stating that the proposed rule change 
``mitigate the risk of a conflict of interest by clarifying that 
member firms are empowered to approve or disapprove a proposed 
arrangement.''); see also Malecki at 6 (stating that ``member firms 
should not be able to `opt-out' of reviewing and/or approving these 
types of lending/borrowing transactions with customers.'').
---------------------------------------------------------------------------

    The proposed rule change would clarify that a member firm is not 
required to pre-approve borrowing or lending arrangements within the 
close personal relationship, business relationship, or registered 
persons exceptions. As such, the proposed rule change would strengthen 
an important existing control on such arrangements, by explicitly 
making clear that a member firm is not required to approve any such 
arrangement simply because a registered person notified the member 
firm. For these reasons, the proposed rule change is reasonably 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, and, in general, to 
protect investors and the public interest.
2. Notification and Approval Requirements for the Immediate Family 
Member Exception and the Financial Institution Exception
    Current Rule 3240(b)(2) provides, in pertinent part, that a member 
firm's written procedures may indicate that that registered persons are 
not required to notify the member firm or receive member firm approval 
either prior to or subsequent to entering into borrowing or lending 
arrangements with immediate family members.\127\ Similarly, current 
Rule 3240(b)(3) provides, in pertinent part, that a member firm's 
written procedures may indicate that registered persons are not 
required to notify the member firm or receive member firm approval of 
borrowing or lending arrangements within the financial institution 
exception, provided that ``the loan has been made on commercial terms 
that the customer generally makes available to members of the general 
public similarly situated as to need, purpose and creditworthiness.'' 
\128\
---------------------------------------------------------------------------

    \127\ Rule 3240(b)(2). However, as noted above, the current rule 
allows a member to require such notification and approval for 
borrowing and lending arrangements with immediate family or 
financial institutions if the member firm so chooses. See Notice at 
3971 n.21.
    \128\ Rule 3240(b)(3).
---------------------------------------------------------------------------

    The proposed rule change would amend Rule 3240(b)(2) and Rule 
3240(b)(3) to apply the same approach to borrowing or lending 
arrangements within the immediate family exception and the financial 
institution exception, respectively, to such arrangements that pre-
exist the broker-customer relationship.\129\ These changes are intended 
to correspond to and account for the fact that, under the proposed rule 
change, the general prohibition applies to borrowing or lending 
arrangements that pre-exist the broker-customer relationship.\130\
---------------------------------------------------------------------------

    \129\ See Notice at 3971.
    \130\ See id.
---------------------------------------------------------------------------

    Specifically, to extend these provisions to pre-existing 
arrangements, the proposed rule change would amend Rule 3240(b)(2) to 
provide that the member firm's written procedures may indicate that 
registered persons are not required to notify the member firm or 
receive the member firm's approval of pre-existing borrowing or lending 
arrangements that would fall within the immediate family exception 
prior to initiating a broker-customer relationship.\131\ Similarly, the 
proposed rule change would amend Rule 3240(b)(3) to provide that the 
member firm's written procedures may also indicate that registered 
persons are not required to notify the member firm or receive member 
firm approval of pre-existing arrangements that would fall within the 
financial institution exception prior to initiating a broker-customer 
relationship, provided the borrowing or lending arrangements meet the 
restrictions of the exception set forth above.\132\
---------------------------------------------------------------------------

    \131\ See proposed Rule 3240(b)(2).
    \132\ See proposed Rule 3240(b)(3).
---------------------------------------------------------------------------

    Two commenters expressed concern that the proposed rule change 
would not require notice and approval of borrowing or lending 
arrangements with immediate family members or financial 
institutions.\133\ One of these commenters stated that given the risk 
of financial exploitation in familial relationships, FINRA should 
require ``at least the same notification and approval for arrangements 
with immediate family as it requires for other registered persons and 
`close personal' and business relationships.'' \134\ The other 
commenter concurred, stating that the proposed rule change disregards 
``important considerations about the perpetrators of financial fraud.'' 
\135\
---------------------------------------------------------------------------

    \133\ See NASAA at 4-5; see also Malecki at 6.
    \134\ See NASAA at 5; see also Malecki at 6 (stating that 
``member firms should not be able to `opt-out' of reviewing and/or 
approving these types of lending/borrowing transactions with 
customers, through their own firm procedures, as it defeats the 
purpose of and intent behind Rule 3240 itself'').
    \135\ Malecki at 3 (stating that ``an `immediate' familial 
relationship is not a barrier to committing fraud generally, and it 
should not be used as an exception for allowing lending arrangements 
between registered representatives and their customers.'').
---------------------------------------------------------------------------

    In response, FINRA stated that, other than extending the Rule 
3240(b)(2) obligations to borrowing and lending arrangements 
established prior to initiating a broker-customer relationship, the 
proposed rule change would not amend the existing immediate family 
exception or require notice or approval of borrowing and lending 
arrangements with immediate family members.\136\ FINRA further stated 
that Rule 3240 is not intended to encourage registered persons to avoid 
traditional financing arrangements, but rather to continue to allow for 
tailored exceptions to the general prohibition on borrowing or lending 
arrangements in limited situations where FINRA believes the likelihood 
that the registered person has borrowed from or lent money to a 
customer by virtue of the broker-customer relationship is reduced 
(e.g., certain borrowing or lending arrangements with immediate family 
members and financial institutions).\137\ FINRA also identified 
``examples of

[[Page 77556]]

mutually beneficial borrowing or lending arrangements between immediate 
family members, including senior family members (e.g., loans to cover 
medical expenses, dependent care, home repairs, etc.).'' \138\ FINRA 
recognized that ``[p]ermitting family members to privately lend with 
each other, may also allow family members to obtain small or short-term 
loans, including at an interest rate lower than commercially 
available.'' \139\ Further, FINRA reiterated that a registered person 
is prohibited from entering into a borrowing or lending arrangement 
with a customer who is an immediate family member, including one who is 
a senior investor, unless the member firm adopts written procedures 
permitting such arrangements.\140\ FINRA noted that members firms may 
choose to prohibit all borrowing and lending arrangements, allow only 
some of the exceptions, or impose limitations on the exceptions.\141\ 
Finally, FINRA stated that requiring notice and approval for borrowing 
and lending arrangements with immediate family members ``may invade 
legitimate privacy interests because such a requirement could interfere 
with or intrude upon personal or private family matters.'' \142\ 
According to FINRA, by strengthening the general prohibition and 
narrowing its exceptions, the proposed rule change would further 
protect all investors, including senior investors.\143\
---------------------------------------------------------------------------

    \136\ See FINRA Comment Response at 7; see also Notice at 3976.
    \137\ See FINRA Comment Response at 6-7.
    \138\ Id. at 8.
    \139\ Id.
    \140\ See id.
    \141\ Id.
    \142\ Id.
    \143\ Id. FINRA further stated that Rule 2010 (Standards of 
Commercial Honor and Principles of Trade)--which provides that a 
member, in the conduct of its business, shall observe high standards 
of commercial honor and just and equitable principles of trade--
protects investors from unethical behavior and is broad enough to 
cover a wide range of unethical conduct. See id.
---------------------------------------------------------------------------

    The proposed rule change is not imposing new obligations on 
borrowing and lending arrangements within the immediate family 
exception or within the financial institution exception but would 
extend the existing regime to situations where such financial 
arrangements pre-exist the formal establishment of a broker-customer 
relationship. As with all the exceptions under the rule, a registered 
person can only enter into a borrowing or lending arrangement pursuant 
to the immediate family exception or financial institution exception if 
the member firm has adopted written procedures permitting such an 
arrangement. A member firm's procedures may prohibit all such 
arrangements, allow only some of the excepted arrangements, or impose 
limits on the exceptions, as the member firm deems appropriate to be 
reasonably designed to achieve compliance with the proposed rule 
change.\144\ Accordingly, while not explicitly required, as part of 
establishing a reasonably designed supervisory system as required under 
FINRA rules,\145\ member firms may nevertheless require notification 
and approval of arrangements that fall under the immediately family 
exception and financial institution exception as part of their written 
procedures based on their assessment of the risks associated with such 
arrangements.\146\ By providing member firms the flexibility to 
determine whether or not to allow such arrangements, and if so, whether 
to require notice and approval for such arrangements, and in particular 
for arrangements within the immediate family exception, FINRA 
reasonably balances the potential risk of harm associated with such 
arrangements with the potential benefits of such arrangements and the 
potential associated privacy concerns. Moreover, as discussed above, 
the proposed rule change broadens and strengthens the application of 
the rule by, among other things, covering relationships that pre-exist 
a new broker-customer relationship, as well as borrowing or lending 
arrangements entered into within six months after a broker-customer 
relationship ends, which will add protections to investors, including 
those whose arrangements fall within the immediate family exception. 
For these reasons, the proposed rule change is reasonably designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, and, in general, to protect 
investors and the public interest.
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    \144\ See Rule 3110(b)(1).
    \145\ See Rule 3110(a).
    \146\ See infra Section III.D.4.
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3. Notifications in Writing and Record Retention
    As stated above, Rule 3240 does not require that registered persons 
who must notify their member firms of borrowing and lending 
arrangements do so in writing.\147\ Furthermore, the current rule does 
not require member firms to retain any notices of borrowing and lending 
arrangements that they may receive from registered persons; it only 
requires member firms to retain written approvals.\148\
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    \147\ See Notice at 3971.
    \148\ Id.
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    The proposed rule change would require registered persons to notify 
their member firms in writing of those borrowing and lending 
arrangements under Rule 3240 that require notification and approval 
(i.e., the exceptions involving registered persons, close personal 
relationships, and business relationships).\149\ The proposed rule 
change would also amend Rule 3240.01 to require member firms to retain 
the written notifications and approvals records for at least three 
years after the date that the borrowing or lending arrangement has 
terminated, or for at least three years after the registered person's 
association with the member has terminated.\150\ The proposed rule 
change would also require record retention of notices and approvals 
related to the immediate family and financial institution exceptions, 
unless the member firm's procedures indicate that registered persons 
are not required to notify the member firm and/or receive member firm 
approval.\151\
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    \149\ Id.; see proposed Rules 3240(b)(1)(A) and (b)(1)(B) and 
proposed Rule 3240.01.
    \150\ See proposed Rule 3240.01.
    \151\ See supra note 68.
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    One commenter supported the proposed rule change.\152\
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    \152\ See CSLC at 4.
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    By requiring registered persons to give written notice and 
requiring member firms to preserve records of such written notice--
whether required specifically by the rule or by the member firm's 
written procedures--for at least three years, the proposed rule change 
is reasonably designed to help ensure compliance with the amended Rule 
3240 and its exceptions. For these reasons, the proposed rule change is 
reasonably designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, and, in 
general, to protect investors and the public interest.
4. Reasonable Assessment by Member of the Risks Created by the 
Borrowing or Lending Arrangement
    The proposed rule change would add proposed Rule 3240.06, which 
would require a member firm, after receiving a written notice under 
Rule 3240, to ``perform a reasonable assessment of the risks created by 
the borrowing or lending arrangement with a customer, modification to 
the borrowing or lending arrangement with a customer, or existing 
borrowing or lending arrangement with a person who seeks to be a 
customer of the registered person.'' \153\ The proposed rule change 
would also require that the member firm make a ``reasonable 
determination of whether to approve the borrowing or

[[Page 77557]]

lending arrangement, modification to the borrowing or lending 
arrangement, or, where there is an existing borrowing or lending 
arrangement with a person who seeks to be a customer of the registered 
person, the broker-customer relationship.'' \154\ FINRA stated that it 
expects a member firm's reasonable assessment to take into 
consideration a non-exhaustive list of factors that may lead to undue 
harm to the customer as a result of a borrowing or lending arrangement 
with a registered person.\155\
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    \153\ Proposed Rule 3240.06.
    \154\ Id.
    \155\ See Notice at 3971 (listing the following factors: (1) any 
potential conflicts of interest in the registered person being in a 
borrowing or lending arrangement with a customer; (2) the length and 
type of relationship between the customer and registered person; (3) 
the material terms of the borrowing or lending arrangement; (4) the 
customer's or the registered person's ability to repay the loan; (5) 
the customer's age; (6) whether the registered person has been a 
party to other borrowing or lending arrangements with customers; (7) 
whether, based on the facts and circumstances observed in the member 
firm's business relationship with the customer, the customer has a 
mental or physical impairment that renders the customer unable to 
protect his or her own interests; (8) any disciplinary history or 
indicia of improper activity or conduct with respect to the customer 
or the customer's account (e.g., excessive trading); and (9) any 
indicia of customer vulnerability or undue influence of the 
registered person over the customer).
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    One commenter supported the proposed rule change, stating that a 
reasonable assessment could result in ``more questionable arrangements 
being scrutinized, leading to improved investor protection.'' \156\ Two 
commenters suggested modifications to the reasonable assessment 
requirement.\157\ To help regulators assess and compare approval and 
supervision practices across firms, one of these commenters suggested 
that the reasonable assessment provisions should require a minimum 
amount of disclosure and include documentation of the steps the member 
firm took to assess the risk ahead of approving the loan agreement, the 
steps the member firm took to minimize the conflict of interest, how 
the member firm communicated the risk to the customer, and an outline 
of supervisory measures the member firm will take.\158\ In addition, 
this commenter suggested that a ``reasonable assessment and 
determination process should include an interview (preferably by a 
compliance officer) with the customer outside the presence of the 
registered person'' or, where that is not possible, a requirement that 
the member firm verify that the customer benefits from the loan and was 
not pressured into it.\159\ Furthermore, this commenter recommended 
that the proposed rule change require the member firm to apply 
heightened scrutiny to the underlying accounts or impose other 
appropriate conditions where a firm approves a borrowing or lending 
arrangement, or approves a new broker-customer relationship where there 
is a pre-existing borrowing or lending arrangement.\160\ Finally, this 
commenter called for the list of factors FINRA provided in the Notice 
to be included in the rule text.\161\ The other commenter suggested 
that a registered person be ``required to disclose to a customer, in 
writing, that such arrangements are presumptively prohibited and to 
document the exception under which the lending arrangement falls'' and 
that member firms should be required to consult with the customer 
before approving a borrowing or lending arrangement to ensure the 
customer receives a full and fair disclosure about the terms of the 
arrangement.\162\ In addition, this second commenter recommended that 
the proposed rule change require member firms that allow registered 
persons to enter lending arrangements with their customers to 
collateralize any such loans that such member firms approve.\163\
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    \156\ CSLC at 6.
    \157\ NASAA at 5-6; Malecki at 6.
    \158\ See NASAA at 5-6.
    \159\ See id. at 6 (stating that an interview would help ensure 
the borrowing or lending arrangement does not put the customer at 
risk of undue influence).
    \160\ Id. at 6 (stating that heightened supervision would guard 
against the conflicts of interest that come with these 
relationships, and that an enhanced review of trades and 
transactions in the account should at least be required when the 
customer is elderly or otherwise vulnerable to exploitation).
    \161\ See NASAA at 5.
    \162\ See Malecki at 7.
    \163\ See id. at 2-3 (stating that other than prohibiting 
borrowing and lending arrangements, the only way to ensure that a 
customer is not harmed is to require member firms to have ```skin' 
in such arrangements.'').
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    In response, FINRA stated that FINRA Rule 3110 (Supervision) 
requires each member firm to ``establish and maintain a system to 
supervise the activities of each associated person that is reasonably 
designed to achieve compliance with applicable securities laws and 
regulations, and with applicable FINRA rules.'' FINRA stated that 
member firms could consider incorporating the commenter's suggested 
supervisory and disclosure requirements into their systems for 
supervising for compliance with Rule 3240, but FINRA is not requiring 
them here.\164\ FINRA did not include the list of factors in the rule 
text, explaining that given the flexibility firms have to develop their 
own supervisory systems under Rule 3110, ``it is not necessary or 
appropriate to prescribe specific supervisory procedures in Rule 
3240.'' \165\ FINRA did, however, highlight guidance regarding ``the 
minimum that should be included in written supervisory procedures, 
including: (1) the specific identification of the individual(s) 
responsible for supervision; (2) the supervisory steps and reviews to 
be taken by the appropriate supervisor; (3) the frequency of such 
reviews; and (4) how such reviews shall be documented.'' \166\ With 
respect to the suggestion that the terms of the arrangement should be 
discussed with, and disclosed to, the customer, FINRA reiterated that 
it expects a member to consider the reasonable assessment factors noted 
earlier--several of which pertain to the terms of the arrangement and 
the nature of the parties--and to try to discuss the arrangement with 
the customer.\167\ FINRA also stated that regardless of the terms of a 
member firm's supervisory system, Rule 3110 requires member firms to 
follow-up on red flags related to borrowing or lending arrangements 
between registered persons and their customers.\168\
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    \164\ See FINRA Comment Response at 12. FINRA also stated that 
the non-exhaustive list of factors FINRA expects members to consider 
address ``many of the commenters' concerns,'' including 
consideration of: (1) any potential conflicts of interest in the 
registered person being in a borrowing or lending arrangement with a 
customer; (2) the material terms of the borrowing or lending 
arrangement; (3) the customer's or the registered person's ability 
to repay the loan; (4) the customer's age; (5) whether, based on the 
facts and circumstances observed in the member's business 
relationship with the customer, the customer has a mental or 
physical impairment that renders the customer unable to protect his 
or her own interests; and (6) any indicia of customer vulnerability 
or undue influence of the registered person over the customer. See 
id. at 13. FINRA further stated that those factors along with the 
guidance in FINRA Regulatory Notice 21-43 (Dec. 2021) would ``help 
members evaluate the key risks and conflicts while giving members 
appropriate flexibility in evaluating which factors may apply to a 
particular situation.'' See id. at 14.
    \165\ FINRA Comment Response at 12-13 (stating that ``FINRA 
rules concerning duties, conflicts and responsibilities related to 
associated persons generally do not set forth specific supervisory 
procedures that member firms must adopt to satisfy the requirements 
of FINRA's supervision rule. See generally Rule 2000 Series (Duties 
and Conflicts; Rule 3000 Series (Supervision and Responsibilities 
Related to Associated Persons)'').
    \166\ Id. at 12 (referencing guidance from Notice to Members 98-
96 and Notice to Members 99-45 regarding tailoring the supervisory 
system to the member firm's business).
    \167\ See id. at 14.
    \168\ See id. at 12-13.
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    Requiring a member firm, after receiving written notice under Rule 
3240, to perform a reasonable assessment of the risks created by the 
borrowing or lending arrangement with

[[Page 77558]]

a customer and, based on that assessment, to make a reasonable 
determination of whether to approve the borrowing or lending 
arrangement, is reasonably designed to protect investors. Whether a 
specific borrowing or lending arrangement creates the potential for a 
conflict or other abuse that could harm an investor requires analysis 
of the facts and circumstances. Because of its supervisory obligations, 
a broker-dealer is both obligated and best positioned to analyze the 
facts and circumstances related to a borrowing or lending arrangements 
between one of its registered persons and a customer. In addition, 
consistent with the flexibility firms have to develop their own 
supervisory systems under Rule 3110, the member firm is also best 
positioned to determine reasonable controls to supervise for compliance 
with the proposed rule change based on its assessment of the risks 
involved with a borrowing or lending arrangement that falls within one 
of the five exceptions to Rule 3240. While not required, reasonably 
designed controls could include the supervisory, disclosure or other 
requirements suggested by commenters (such as providing disclosure, 
collateralizing loans between one of its registered persons and a 
customer, interviewing customers, and applying heightened scrutiny as 
it perceives higher risks). As such, the proposed rule change 
represents an important safeguard for protecting investors from 
conflicts or other abuses that could harm them in such arrangements. 
Moreover, in exercising its supervisory obligations under FINRA Rule 
3110, a member firm may always choose to prohibit or restrict borrowing 
and lending arrangements as it sees fit and in light of the risks 
presented by an arrangement. For example, if the broker-dealer 
determines that the risks to the customer of lending money to a 
registered person cannot be effectively managed, the proposed rule 
change would allow the firm to disapprove or further restrict the 
arrangement. For these reasons, the proposed rule change is reasonably 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, and, in general, to 
protect investors and the public interest.

IV. Conclusion

    For the reasons set forth above, the Commission finds that the 
proposed rule change is consistent with Section 15A(b)(6) of the 
Exchange Act, which requires, among other things, that FINRA rules be 
designed to prevent fraudulent and manipulative acts and practices, 
promote just and equitable principles of trade, and, in general, 
protect investors and the public interest.\169\
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    \169\ 15 U.S.C. 78o-3(b)(6).
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    It is therefore ordered pursuant to Section 19(b)(2) of the 
Exchange Act \170\ that the proposal (SR-FINRA-2024-001), be and hereby 
is approved.
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    \170\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\171\
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    \171\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-21622 Filed 9-20-24; 8:45 am]
BILLING CODE 8011-01-P